An Independent Candidate?

Many voters and commentators dislike both Clinton and Trump, and are actively seeking an independent candidate or candidates. For example, last week a leading member of the #NeverTrump movement (Bill Kristol) suggested that David French, a good friend of mine from law school, would be his choice to run as an independent candidate. David is a great guy – smart, principled, patriotic, and down to earth. And while you wouldn’t necessarily know it from looking at him or reading his work, he loves basketball and actually had a pretty good jumpshot back in law school. Ultimately, though, David decided not to run.

The path to victory for an independent candidate would be extremely narrow, and shrinking every day, if not already closed as a practical matter. The various windows for submitting petitions to qualify to appear on state ballots are closing rapidly, leading most of the Anti-Clinton/Trump forces to freely acknowledge that an independent presidential candidate would have little chance to win an election outright.

So what, then, could possibly be the goal? At least one stated aim is to try to prevent either candidate from securing a majority of Electoral College votes, thus throwing the election into the House of Representatives where a “white knight” candidate could be selected for President.

But is it realistic to think Clinton and Trump could both be prevented from getting a majority of votes in the Electoral College?

There are 538 total electoral votes, and 270 constitutes a majority. While it is theoretically possible to have a 269-269 tie – indeed, there are 32 different tie scenarios if you assume 11 battleground states – it is highly unlikely. Realistically, then, an independent presidential candidate would need to win at least one state in order to prevent both Clinton and Trump from getting to a 270 vote majority in the Electoral College. However, that is more difficult than you might think. In 1992, for example, Ross Perot garnered 19% of the vote nationally, but didn’t secure a single Electoral College vote because he failed to actually win a state. Thus, without major funding or campaign infrastructure, an independent candidate would likely need to focus almost exclusively on a small handful of states, and then hope for the best in the House of Representatives.

But let’s assume that happens. What’s next in the House?

The Twelfth Amendment to the United States Constitution spells out the process, and it actually works quite a bit differently than many voters and commentators apparently believe it does. This has occurred only twice in history – the election of Thomas Jefferson in 1800 and Andrew Jackson in 1824.

First, the House doesn’t vote in a normal fashion where every representative gets to cast his/her separate vote. The voting takes place by state, with each state getting one vote. So a state with a majority of Democrat representatives would presumably vote one way, whereas a state with a majority of Republican representatives would presumably vote another way. This possibly dilutes a Party’s voting strength. Assume, for example, 3 states that each have 20 representatives. States 1 and 2 each have 11 Democrats vs. 9 Republicans, compared to State 3 which has 20 Republicans and 0 Democrats. If you totaled all those votes separately, then the vote of the Republican representatives would win easily: 38-22. However, in state-by-state voting, the Democrats would lead 2-1.

Second, and perhaps more importantly, the Twelfth Amendment specifically prohibits a true “white knight” outsider scenario, because the House can only vote for a candidate who finishes in the top 3 in the Electoral College votes. The pertinent part of the Twelfth Amendment states as follows:

“If no person have a majority [in the Electoral College], then from the persons having the highest numbers not exceeding three on the list of those voted for president, the House of Representatives shall choose immediately, by ballot, the president.”

Thus, a “white knight” candidate must have received at least 1 electoral vote in order to be eligible for consideration by the House. That presumably means no Paul Ryan, no Bernie Sanders, no Mitt Romney, nor any other outsider who failed to participate in the general election process and win at least one state (or portion thereof, since 2 states — Nebraska and Maine — are technically not winner-take-all when it comes to their 3 electoral votes each).

The Faithless Elector — the Last Possible Hail Mary?

The Electoral College technically meets and votes in December following the November election. Based on the Twelfth Amendment, the only other way to trigger a “white knight” scenario would be for one or more of the electors to disregard the popular vote in his/her particular state and become what is referred to as a “Faithless elector” by casting his/her ballot for an outsider. Twenty-nine states have laws or political party restrictions that technically require an Elector to conform his/her vote to the popular vote in the state; however, no one has ever actually been prosecuted for becoming a Faithless Elector. Twenty-one states have no laws at all to require Electors to vote for a pledged candidate.

Barring a situation where an independent candidate actually won an electoral vote, the Anti-Clinton/Trump forces would be hoping for an election night that produced a tie in the Electoral College vote. They would then hope to peel off one or more Faithless electors to cast votes for a “white knight” candidate in December, thus making him/her eligible for a miracle in the House of Representatives.

About Lang Wiseman: Lang is the former Chairman of the Shelby County Republican Party and attended the 2012 Republican National Convention.

Prior to founding Wiseman Bray PLLC, Lang served as Counsel to the United States Senate Governmental Affairs Committee. He previously served as Law Clerk to Judge Harry Wellford of the Sixth Circuit Court of Appeals. Lang graduated with honors from the Harvard Law School after attending the University of Tennessee on a basketball scholarship, where he finished as the 24th leading scorer in UT history (1,156 points). He also graduated with a perfect 4.0 GPA and was the Top Graduate in the College of Business.